Google is warning that the Federal Communications Commission's net neutrality plan could have unintended consequences that help Internet service providers charge Web services for sending traffic.

FCC Chairman Tom Wheeler's plan would reclassify broadband providers as common carriers on two fronts, in the service they provide home Internet customers and their relationships with "edge providers," companies like Netflix that offer content to consumers over the Internet. Classifying the ISP-edge provider relationship is, in the FCC's way of thinking, supposed to provide additional authority so the commission can intervene when an edge provider claims it is being treated unfairly.

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But Google says that giving the ISP-edge provider relationships a new classification could actually make it easier for Internet providers to charge edge providers for the right to send traffic to consumers.

"[T]his issue must be viewed in light of the efforts by some ISPs, particularly abroad, to claim that they provide a service to content providers for which they should be able to charge under a 'sender pays' model—while still charging their retail customers for the same traffic," Google Communications Law Director Austin Schlick wrote in a filing with the FCC. "To the extent the Commission encourages the falsehood that ISPs offer two overlapping access services instead of just one, or the fiction that edge providers are customers of terminating ISPs when they deliver content to the Internet, it may encourage such attempts at double-recovery. That could do serious, long-term harm to the virtuous circle of Internet innovation, thus greatly undermining the benefit of adopting net neutrality rules."

Google is making an argument similar to one put forth by the advocacy group Free Press, which said that classifying the ISP-edge provider connection as a common carrier service is a legally dicey strategy. The FCC's goal is to be able to intervene in interconnection disputes that harm Internet service quality. But both Free Press and Google argue that the FCC can oversee interconnection simply by reclassifying consumer broadband as a common carrier service.

It is not "necessary to imagine a non-existent service in order to reach ISPs’ interconnection practices," Google told the FCC. "Should the Commission classify end-user broadband Internet access as a telecommunications service subject to Title II [of the Communications Act], that classification alone would enable the Commission to ensure that ISPs’ interconnection practices are just and reasonable. As noted, for instance, Section 201(b) requires just and reasonable practices 'for and in connection with such communication service.' If an ISP’s intentional port congestion or other interconnection practices denied end-user customers the full benefit of the two-way service they have purchased, then the Commission could take enforcement action."

Interconnection is when two network providers, or an edge provider and an ISP, exchange traffic directly without a middleman. These transfers can happen with or without payment. This type of paid traffic transfer is different from "paid prioritization" deals prohibited by the net neutrality proposal, because interconnection doesn't speed traffic up after it enters the ISP's network. But interconnection can greatly improve performance because it provides a dedicated path into the ISP's network.

Interconnection became part of the net neutrality debate only after a dispute between Netflix and ISPs caused consumers to have poor Netflix service for months, until Netflix relented and paid for direct network connections. The FCC is not proposing a ban on interconnection payments outright, but it wants to set up a complaint process in which edge providers could argue that they are being overcharged or that ISPs aren't upgrading capacity quickly enough.

"Informal, settlement-free peering is the norm because it minimizes transaction costs and reflects the mutual benefit both parties receive from interconnection," Google wrote. "Google has entered into peering arrangements with some of the largest US broadband providers insofar as we are unable to use transit to reach users on those networks with reasonable quality. These arrangements are individually negotiated, however, so they could not support classification of a common carriage service provided to Google or any other edge provider."

FCC: We’re doing this “just in case”

Google acknowledged that the FCC appears to be reacting to the court ruling that vacated the commission's previous net neutrality rules.

"The impetus for seeking to classify a non-existent edge provider service appears to be language in the DC Circuit’s Verizon decision," Google wrote. "There, the Court of Appeals opined, without reference to any evidence, that 'broadband providers furnish a service to edge providers, thus undoubtedly functioning as edge providers’ ‘carriers.’ The Commission and the Department of Justice had argued to the contrary, correctly advising the Court that this view 'misstates... the nature of Internet access service.'"

The FCC "should not assume that the DC Circuit’s prior view will be the last word in future litigation," Google wrote.

The FCC seems to be hedging its bets in an attempt to survive court challenges. In a summary of Wheeler's proposal, the FCC said that reclassifying retail broadband should be enough to enforce net neutrality rules.

"But just in case, we also make clear that if a court finds that it is necessary to classify the service that broadband providers make available to 'edge providers,' it too is a Title II telecommunications service," the FCC said. "[B]oth the service to the end user and to the edge provider are classified under Title II."

A spokesperson for Wheeler declined to comment when contacted by Ars today. The commission is scheduled to vote on the net neutrality plan Thursday this week. Although we have a summary of the proposal, the FCC is not releasing the entire plan until after the vote, as is consistent with past practice.

UPDATE on Tuesday, February 24: The Hillreported that Democratic FCC Commission Mignon Clyburn objects to creating a new legal category for the ISP-edge provider relationship. Clyburn declined to comment.